Citation Nr: 0803087
Decision Date: 01/28/08 Archive Date: 02/04/08
DOCKET NO. 04-25 984 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for a right knee
disability.
2. Entitlement to an initial evaluation in excess of 10
percent for residuals of right tibia stress fracture post
surgery for malunion.
3. Entitlement to an initial evaluation in excess of 10
percent for residuals of left tibia stress fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Richmond, Associate Counsel
INTRODUCTION
The veteran had active military service from September 1998
to June 2003.
This matter comes to the Board of Veterans' Appeals (Board)
from a June 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia, which denied service connection for a right knee
disability and granted service connection for a residuals of
a right tibia stress fracture, assigning a 10 percent rating,
and service connection for residuals of a left tibia stress
fracture, assigning a 0 percent rating; both ratings are
effective June 20, 2003. In July 2007, the RO granted an
increased rating of 10 percent for residuals of left tibia
fracture, effective June 20, 2003. The veteran has not
indicated that she is satisfied with these ratings and those
claims are is still before the Board. AB v. Brown, 6 Vet.
App. 35 (1993).
The Board remanded this case in March 2007 so that the RO
could consider new evidence in the first instance. As the
requested development has been accomplished, this case is now
properly before the Board.
FINDINGS OF FACT
1. The medical evidence shows no present right knee
disability.
2. The residuals of the right tibia stress fracture are
manifested by chronic pain in the right shin area at the pin
sites, well-healed, non-tender scars that do not cause
limited motion, x-ray evidence of callus formation consistent
with severe stress fracture, status post osteotomy repair,
degenerative changes near the ankle area, but otherwise
normal ankle examination, and functional impairment in the
right leg due to pain.
3. The residuals of the left tibia stress fracture are
manifested by x-ray evidence of callus formation consistent
with old stress fracture, and chronic leg pain, with mild
possible degenerative changes in the left knee and normal
left ankle examination.
CONCLUSIONS OF LAW
1. A right knee disability was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 &
Supp. 2007); 38 C.F.R. § 3.303 (2007).
2. The criteria for an initial evaluation in excess of 10
percent for residuals of right tibia stress fracture have not
been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38
C.F.R. §§ 4.1, 4.2, 4.6, 4.10, 4.20, 4.27, 4.31, 4.71a,
Diagnostic Code 5262 (2007).
3. The criteria for an initial evaluation in excess of 10
percent for residuals of left tibia stress fracture have not
been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38
C.F.R. §§ 4.1, 4.2, 4.6, 4.10, 4.20, 4.27, 4.31, 4.71a,
Diagnostic Code 5262 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Notice and Assistance
Upon receipt of a complete or substantially complete
application, VA must notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103(a). VA must request that the
claimant provide any evidence in the claimant's possession
that pertains to a claim. 38 C.F.R. § 3.159.
The notice requirements apply to all five elements of a
service connection claim: 1) veteran status; 2) existence of
a disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess v. Nicholson, 19 Vet. App.
473 (2006).
The notice must be provided to a claimant before the initial
unfavorable adjudication by the RO. Pelegrini v. Principi,
18 Vet. App.112 (2004).
The notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
The RO provided the appellant pre-adjudication notice by
letter dated in December 2002, regarding the initial service
connection claims. The notification substantially complied
with the requirements of Quartuccio v. Principi, 16 Vet. App.
183 (2002), identifying the evidence necessary to
substantiate the claims and the relative duties of VA and the
claimant to obtain evidence; and Pelegrini v. Principi,
18 Vet. App. 112 (2004), generally requesting the claimant to
provide evidence in her possession that pertains to the
claims.
While the letter did not specifically request the veteran to
submit any additional evidence in her possession, since she
stated in December 2002 that she had no additional evidence
to submit, any defect with respect to that element is
rendered moot.
During the appeal, the veteran amended her right knee claim
to include as secondary to her service-connected right tibia
disability. The December 2002 letter does not contain the
information necessary to substantiate a secondary service
connection claim. As discussed below, however, the medical
evidence does not show a current right knee disability.
Therefore, any additional notice provided regarding the
secondary service connection issue would not have aided the
veteran in substantiating her claim. For this reason, this
defect is found to be non-prejudicial.
After the RO granted service connection for residuals of
tibia fractures in the right and left leg in a June 2003
rating decision, the veteran filed a notice of disagreement
with the assigned ratings. The RO later granted an increased
rating of 10 percent for the left tibia and continued the 10
percent rating for the right tibia. While the veteran was
not provided a VA letter outlining the evidence necessary to
substantiate an initial increased rating claim, including the
laws regarding degrees of disability or effective dates for
any grant of service connection, the statutory scheme
contemplates that once a decision awarding service
connection, a disability rating, and an effective date has
been made, section 5103(a) notice has served its purpose.
Dingess v. Nicholson, 19 Vet. App. at 490 (2006). As the
veteran was granted service connection and assigned an
evaluation and effective date, the Secretary had no
obligation to provide further notice under the statute. Id.
Additionally, the veteran has demonstrated actual knowledge
of the evidence necessary to substantiate an increased rating
claim by her assertions that her disabilities are worse than
what she has been evaluated for. See Mayfield v. Nicholson,
19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d
1328 (Fed. Cir. 2006) (VA can demonstrate that a notice
defect is not prejudicial if it can be demonstrated ... that
any defect in notice was cured by actual knowledge on the
part of the appellant that certain evidence (i.e., the
missing information or evidence needed to substantiate the
claim) was required and that the appellant should have
provided it.); see also Overton v. Nicholson, 20 Vet. App.
427 (2006). As such, any defect with respect to the content
of the notice was non-prejudicial.
VA has obtained service medical records, assisted the veteran
in obtaining evidence, afforded the veteran physical
examinations, obtained medical opinions as to the presence of
any right knee disability, and obtained opinions regarding
the severity of her left and right tibia disabilities. All
known and available records relevant to the issues on appeal
have been obtained and associated with the veteran's claims
file.
VA has substantially complied with the notice and assistance
requirements and the veteran is not prejudiced by a decision
on the claim at this time.
Service connection
The veteran seeks service connection for a right knee
disability.
In seeking VA disability compensation, a veteran generally
seeks to establish that a current disability results from
disease or injury incurred in or aggravated by service. 38
U.S.C.A § 1110. "Service connection" basically means that
the facts, shown by the evidence, establish that a particular
injury or disease resulting in disability was incurred
coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. This may
be accomplished by affirmatively showing inception or
aggravation during service or through the application of
statutory presumptions. Where chronicity of a disease is not
shown in service, service connection may yet be established
by showing continuity of symptomatology between the currently
claimed disability and a condition noted in service. A
veteran may also establish service connection if all of the
evidence, including that pertaining to service, shows that a
disease first diagnosed after service was incurred in
service. 38 C.F.R. § 3.303.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. 38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The service medical records are negative for any disability
or injury involving the right knee. Right before discharge,
however, a January 2003 VA examination report shows the
veteran complained of developing right knee discomfort
described as an aching sensation. She believed that it
occurred due to gaining some weight as a result of her shin
splints and right leg condition. The pain was described as
sharp, with flare-ups occurring once per week on average
lasting 15 to 30 minutes. During flare-ups it was difficult
to walk due to the pain. She had no functional impairment
resulting from the knee condition. On physical examination,
the general appearance of the right knee joint was normal.
Range of motion showed flexion to 140 degrees and extension
to 0 degrees, not additionally limited by pain, fatigue,
weakness, lack of endurance, or incoordination. There was no
ankylosis of the knee joint and Drawer's and McMurray's tests
were within normal limits. There was no evidence of
recurrent subluxation, locking pain, joint effusion, or
crepitus. X-ray examination of the right knee was within
normal limits. The examiner found that there was
insufficient objective evidence to establish a diagnosis of
any disability regarding the veteran's claimed right knee
condition, noting that the examination was normal, including
range of motion and normal x-rays.
A February 2003 military orthopedic evaluation shows normal
alignment upon standing with approximately six degrees of
valgus through the knee. Examination of the right knee
showed range of motion from minus seven degrees of
hyperextension to full extension to 128 degrees of flexion.
She was stable to varus/valgus stress at both 0 and 30
degrees. She had a negative Lachman examination and no joint
line tenderness to palpation. She also had a normal
McMurray's examination.
After service, a June 2004 VA medical record notes a general
complaint of knee pain.
The medical evidence does not show a present disability in
the right knee. The veteran's statements regarding the
symptoms in her right knee are accepted as credible because
she is competent to report observable manifestations, and
there is no reason to doubt her credibility. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992); Savage v. Gober, 10
Vet. App. 488 (1997). Pain alone, without a diagnosed or
identifiable underlying condition, however, does not
constitute a disability for which service connection may be
granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285
(1999), appeal dismissed in part, and vacated and remanded in
part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356
(Fed. Cir. 2001).
Service connection cannot be granted if there is no present
disability. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304,
3.306. That a condition or injury occurred in service is not
enough; there must be a current disability resulting from
that condition or injury. See Rabideau v. Derwinski, 2 Vet.
App. 141, 144 (1992); Chelte v. Brown, 10 Vet. App. 268, 271
(1997). In the absence of proof of a present disability,
there can be no valid claim. See Brammer v. Derwinski, 3
Vet. App. 223, 225 (1992).
While the Board has considered the veteran's lay assertions,
they do not outweigh the medical evidence of record, which
shows that there is no present disability associated with the
right knee pain.
The preponderance of the evidence is against the service
connection claim for a right knee disability; there is no
doubt to be resolved; and service connection is not
warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58.
Increased rating
The RO granted service connection for residuals of stress
fractures of the right and left tibia in June 2003. A 10
percent rating was initially granted for the right tibia and
a 0 percent rating for the left tibia, both effective June
20, 2003. The veteran appealed this action contending that
she has problems with her gait and physical impairment and
that she has visible scar tissue on the right leg. In July
2007, the RO granted an increased rating of 10 percent for
the left tibia effective June 20, 2003. The veteran has not
indicated that she is satisfied with this rating.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Separate diagnostic codes identify the various disabilities.
Where there is a reasonable doubt as to the degree of
disability, such doubt shall be resolved in favor of the
claimant, and where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. §§ 3.102,
4.3, 4.7. In addition, the Board will consider the potential
application of the various other provisions of 38 C.F.R.,
Parts 3 and 4, whether or not they were raised by the
veteran, as well as the entire history of the veteran's
disorder in reaching its decision, as required by Schafrath
v. Derwinski, 1 Vet. App. 589 (1991).
In a claim for a greater original rating after an initial
award of service connection, all of the evidence submitted in
support of the veteran's claim is to be considered. In
initial rating cases, separate ratings can be assigned for
separate periods of time based on the facts found, a practice
known as "staged" ratings. See Fenderson v. West, 12 Vet.
App. 119 (1999); 38 C.F.R. § 4.2. Once the evidence is
assembled, the Secretary is responsible for determining
whether the preponderance of the evidence is against the
claim. If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. See Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990).
The veteran's residuals of right and left tibia fractures are
rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5262 for
impairment of the tibia and fibula. Under DC 5262, a 10
percent evaluation is assigned for malunion of the tibia and
fibula with slight knee or ankle disability. A 20 percent
evaluation is assigned for malunion of the tibia and fibula
with moderate knee or ankle disability. A 30 percent
evaluation is assigned for malunion of the tibia and fibula
with marked knee or ankle disability. A 40 percent
evaluation is assigned for nonunion of the tibia and fibula
with loose motion, requiring brace.
Right tibia
A January 2003 pre-discharge examination report shows the
veteran had an osteotomy on the right tibial shaft in May
1999 and that current symptoms include constant, chronic pain
in the right shin area at the pin sites. She reportedly used
a cane and had difficulty walking. On physical examination,
the right tibia was normal without swelling or tenderness.
There was a 6-cm linear scar on the anterior aspect of the
right shin distal to the knee, which was found to be
clinically insignificant, nearly invisible, and did not limit
motion. There were nine smaller scars on the right lower leg
consistent with pin placement. All scars were approximately
1cm each, non-tender, flat, slightly dark in color, and did
not limit motion. The lower extremities had equal leg
length. X-ray examination showed callus formation consistent
with severe stress fracture, status post osteotomy repair.
There were no acute changes noted and no sign of non-union.
The diagnosis was status post osteotomy right tibial shaft
secondary to stress fracture and malalignment of tibial shaft
with residual discomfort.
A February 2003 military orthopedic evaluation record shows
normal alignment in the right lower extremity upon standing.
There was mild tenderness to palpation over the corticotomy
site. There was no crepitus at this site and no other
significant long bone tenderness to palpation. Her pin sites
from her previous external fixator were well-healed with
intact scar tissue over the top; but there was no evidence of
infection or erythema at this site. Plain radiographs
performed in October 2002 showed a healed corticotomy site
with acceptable alignment through it for the right lower
extremity. There was some cortical hypertrophy noted at the
sites of the previous thin wire placements for the external
fixator. A bone scan performed in October 2002 showed
increased uptake at the proximal tibia on the right at the
site of the corticotomy, which were consistent with mild
active stress fractures. The diagnoses were chronic leg pain
secondary to chronic tibial stress fractures; and status post
right tibial stress fracture malunion correction with
corticotomy and external fixator placement.
An October 2003 VA medical record notes complaints of chronic
pain in the right lower extremity. On physical examination,
there were healed scars on the right lower leg resulting from
previous injury and surgeries, all well-healed. There was no
pain to palpation. Lower extremities were strong and equal
bilaterally.
In January 2005, an x-ray examination report shows deformity
of the right proximal tibia with sclerosis that most probably
was secondary to old fracture deformity, though clinical
correlation was suggested. An August 2005 VA x-ray
examination report shows slight increased density in the
midshaft of the tibia, which might be secondary to previous
trauma, though clinical correlation was suggested.
Degenerative changes also were noted near the ankle area.
The medical evidence shows that the veteran does not have a
marked right knee or ankle disability associated with any
maluninion of the right tibia and fibula. A January 2003 VA
examination report shows a normal range of motion and x-ray
examination in the right knee. The examination report also
shows examination and x-rays of the right foot were normal.
General appearance of the ankle was normal and range of
motion was 20 degrees dorsiflexion and 45 degrees plantar
flexion not additionally limited by pain, fatigue, weakness,
lack of endurance, or incoordination. A February 2003
military record also shows dorsiflexion to 30 degrees and
plantar flexion to 50 degrees in the right ankle with full
talar motion and no crepitus of the joint through range of
motion. Degenerative changes were noted in the ankle in an
August 2005 x-ray examination report, but there is no marked
disability noted. The evidence does not rise to the level of
a 20 percent rating under DC 5262.
The scars on the right leg are found to be non-tender, well-
healed, without causing any limitation of function; so no
separate rating is warranted for them.
In evaluating the veteran's claim, the application of a
higher disability evaluation based on functional loss due to
weakness, fatigability, incoordination, or pain on movement
of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59 has been
considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The
veteran has significant complaints of pain in the right leg
and has been recommended by medical doctors to avoid any
significant physical activity such as running or high impact
exercises. Any functional impairment in the right tibia,
however, already has been considered by the 10 percent rating
assigned under DC 5262. Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1.
Consideration has been given to "staged ratings" since
service connection was made effective (i.e., different
percentage ratings for different periods of time). Fenderson
v. West, 12 Vet. App. 119 (1999). However, there are no
identifiable periods of time since the effective date of
service connection during which the veteran's right tibia
disability warranted a higher rating. Therefore, "staged
ratings" are inappropriate in this case.
The evidence more closely approximates the criteria for a 10
percent rating for the residuals of fracture to the right
tibia. 38 C.F.R. § 4.7. The preponderance of the evidence
is against the increased rating claim and there is no doubt
to be resolved. Gilbert v. Derwinski, 1 Vet. App. at 57-58.
Left tibia
A January 2003 pre-discharge VA examination report shows the
left shin reportedly felt normal. Physical examination of
the left tibia and fibula was normal without tenderness or
swelling. X-ray examination showed that the tibia and fibula
in the left leg demonstrated callus formation consistent with
old stress fracture. There were no acute changes noted. The
diagnosis was status post left tibial shaft stress fracture,
resolved with callus formation as evidenced on radiographs.
A February 2003 military orthopedic record shows plain
radiographs performed in October 2002 showed increased
sclerosis of the proximal tibial shaft. There was no
evidence of any acute fracture. A bone scan performed in
October 2002 showed increased uptake at the proximal tibia at
the site of the bony atrophy, consistent with mild active
stress fractures. On physical examination, there was a bony
prominence proximally inferior to the tibial tubercle
consistent with previous site of stress fracture. There was
no point tenderness, however, along any of the long bone in
the left lower extremity. The diagnosis was chronic leg pain
secondary to chronic tibial stress fractures.
The medical evidence shows that the veteran does not have a
marked left knee or ankle disability associated with any
maluninion of the left tibia and fibula. In January 2003,
the left knee's general appearance was normal. Range of
motion was to 140 degrees of flexion and 0 degrees of
extension not additionally limited by pain, fatigue,
weakness, or lack of endurance. There also was no ankylosis
present. A February 2003 military record shows the left knee
had minus five degrees of hyperextension to 0 degrees of full
extension to 130 degrees of flexion. There was mild lateral
compartment tenderness to palpation and no significant
tenderness to palpation over the tibia shaft. A February
2004 VA medical record shows complaints of left knee pain and
x-ray examination in February 2004 and January 2005 shows
possible mild degenerative changes in the left knee. These
findings, however, do not rise to the level of a marked knee
disability. A January 2003 VA examination report showed that
general appearance of the ankle was normal and range of
motion was 20 degrees dorsiflexion and 45 degrees plantar
flexion, not additionally limited by pain, fatigue, weakness,
lack of endurance, or incoordination. A February 2003
military record shows dorsiflexion to 30 degrees and plantar
flexion to 55 degrees in the left ankle with full subtalar
motion.
The evidence does not support the criteria for a 20 percent
rating under DC 5262.
In evaluating the veteran's claim, the application of a
higher disability evaluation based on functional loss due to
weakness, fatigability, incoordination, or pain on movement
of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59 has been
considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The
veteran has been recommended by medical doctors to avoid any
significant physical activity such as running or high impact
exercises. Any functional impairment in the left tibia,
however, already has been considered by the 10 percent rating
assigned under DC 5262. Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1.
Consideration has been given to "staged ratings" since
service connection was made effective (i.e., different
percentage ratings for different periods of time). Fenderson
v. West, 12 Vet. App. 119 (1999). However, there are no
identifiable periods of time since the effective date of
service connection during which the veteran's left tibia
disability warranted a higher rating. Therefore, "staged
ratings" are inappropriate in this case.
The evidence more closely approximates the criteria for a 10
percent rating for the residuals of fracture to the left
tibia. 38 C.F.R. § 4.7. The preponderance of the evidence
is against the increased rating claim and there is no doubt
to be resolved. Gilbert v. Derwinski, 1 Vet. App. at 57-58.
Extraschedular
The Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Board, however, is still obligated to seek all issues
that are reasonably raised from a liberal reading of
documents or testimony of record and to identify all
potential theories of entitlement to a benefit under the law
or regulations. Referral under 38 C.F.R. § 3.321(b)(1) is
appropriate where circumstances are presented that are
unusual or exceptional. Shipwash v. Brown, 8 Vet. App. 218,
227 (1995).
The veteran's disability picture has not been rendered
unusual or exceptional in nature so as to warrant referral of
his case to the Director or Under Secretary for review for
consideration of extraschedular evaluation.
The veteran was put on limited duty while in service; but
there is nothing in the record to show marked interference
with employment due to the tibia disabilities since
discharge. The record also does not show any frequent
periods of hospitalization as result of the tibia
disabilities. The current schedular criteria adequately
compensate the veteran for the current nature and extent of
severity of his service-connected disabilities. Having
reviewed the record with these mandates in mind, there is no
basis for further action on this question.
ORDER
Entitlement to service connection for a right knee disability
is denied.
Entitlement to an initial evaluation in excess of 10 percent
for residuals of right tibia stress fracture post surgery for
malunion is denied.
Entitlement to an initial evaluation in excess of 10 percent
for residuals of left tibia stress fracture is denied.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs